WW v The Disclosure and Barring Service

On an appeal under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal reviews errors of law and material errors of fact, but does not conduct a de novo merits review of whether barring is appropriate. A public authority which has adopted a policy must ordinarily follow it unless objectively justified good reasons exist for departure. Failure to comply with a mandatory escalation procedure may amount to an error of law where the omitted stage provides a substantive procedural safeguard and its materiality cannot be excluded. Post-decision assertions that the outcome would have been unchanged require careful scrutiny; the question is whether no other outcome was possible. Where an error is established but removal is not the only lawful outcome, the matter should be remitted for a fresh decision.

The appellant, a teacher convicted of two counts of rape against his former wife, appealed against the Disclosure and Barring Service decision to include his name on the Children’s Barred List under paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006. He had made representations, so the issue for the DBS was whether it was satisfied that inclusion was appropriate.

He advanced four grounds: failure to escalate the case to the DBS Head of Service; irrational reasoning about transferability of risk from adults to children; disproportionality; and reliance on intoxication. The Upper Tribunal allowed the appeal on the first ground only.

1. Appeal allowed in part. The DBS decision involved an error of law because the case was not escalated to the Head of Service, although the DBS’s guidance required escalation where public confidence was relied upon as a deciding factor.

2. The escalation procedure involved consideration of the full case material by a senior decision-maker. It was a substantive safeguard and could not be treated as a stage that added no value. The DBS gave no satisfactory explanation for the failure to escalate. Assertions following the decision that a senior review had confirmed the outcome were insufficient. Such claims should be approached with healthy scepticism, and materiality should ordinarily be assessed from material existing when the decision was made. It was necessary to establish that no other outcome was possible, not merely that the same outcome would probably have been reached.

3. The other grounds failed. The Tribunal was required to respect the DBS’s expert evaluative role in risk assessment and could not substitute its own view on transferability of risk or proportionality. The DBS had an evidential basis for treating concerns arising from abuse of power and trust in an intimate relationship as transferable, and its assessment was not irrational or perverse. Intoxication was capable of being considered as one factor, although it was not the principal factor relied upon.

4. The decision was set aside and remitted to the DBS for a new decision under section 4(6)(b) of the Act. Removal was not directed because it was not clear that removal was the only lawful outcome. The Tribunal directed that the appellant remain on the Children’s Barred List pending the fresh decision. It anticipated escalation to the Head of Service and suggested consideration of an independent specialist risk assessment.

• Upper Tribunal (Administrative Appeals Chamber): the DBS decision dated 15 May 2020 was set aside for error of law. The matter was remitted to the DBS for a new decision, with the appellant remaining on the Children’s Barred List pending that decision.